+1 862 207 3288 “Due Process” as contained in the Fifth and Fourteenth Amendments to the U.S. Constitution
Paper instructions:
This Research Paper should be written using APA Style (but no cover page, no Abstract and single-spaced). Address the essay question succinctly and in a clearly organized manner. OBSERVE THE WORD LIMITS FOR THIS ASSIGNMENT: This Paper should be not less than 1900, not more than 2100)words, NOT including References. Use “Times New Roman” 12-point font and the paper must have a “References” page listing all sources used in the essay……..
Specific Essay Question: Discuss the meaning, history and importance of the constitutional concept of “Due Process” as contained in the Fifth and Fourteenth Amendments to the U.S. Constitution. Your essay should include brief discussion the conflicting positions of Justice Hugo Black and Justice Felix Frankfurter with respect to the incorporation of rights under the Due Process Clause of the Fourteenth Amendment, and how these positions helped develop the concept of Due Process…..
You MUST use U.S. Supreme Court cases to support your positions and the points you make about Due Process in the essay – DO NOT WRITE ABOUT decisions made by any Court other than the U.S. Supreme Court.
Comments about the essay question: The uniquely American concept of Due Process was primarily developed by specific members of the U.S. Supreme Court. You will find that the meaning of Due Process is entwined with the history of Due Process and that the history of Due Process is best understood by reference to Supreme Court cases. Due Process is a complex topic so it is important that you organize your essay in a way that it actually explains your understanding of Due Process rather than submitting an essay composed of generalities and platitudes. The Instructor for this course will not read and/or correct a “draft” or an outline of your essay. Note: this essay should NOT discuss or even mention the “Due Process Model or the “Crime Control Model.”
What is Due Process? … Basic Rights and Fundamental Fairness [EDITED]
By: LawInfo http://resources.lawinfo.com/en/Articles/constitutional/Federal/what-is-due-process–basic-rights-and-fund.html
Where is Due Process Found
Due process is a constitutional principle that our government must follow before it may take a person’s freedom or property. The 5th Amendment states, “nor shall any person be subject for the same offense to be twice guarantees due process from the federal government, stating no person shall “be deprived of life, liberty, or property, without due process of law.”? The states are required to provide due process because the 14th Amendment states, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”
What is Due Process
A simple definition means due process requires notice and an opportunity to be heard before adverse action is taken against a citizen by the government. In criminal cases examples of due process include the need for probable cause to arrest someone and that a criminal defendant is presumed innocent until proven guilty by an impartial judge or jury. Due process does not just exist in a criminal trial, any time a person’s property interest may be taken due process protections also apply.
The courts have ruled that possessions such as a government issued license and even civil service jobs are property, which may only be revoked after a hearing. A quasi governmental organization like a homeowner’s association is also subject to due process requirements. If a homeowner’s association wants to fine a resident for bylaw violations such as excessive noise or because their house paint is the wrong color a hearing must first be held where the resident is given the opportunity to be heard.
Fundamental Rights
In addition to the “procedural due process” rights described above, which governs how the government must act, the constitution also guarantees “substantive due process” rights. While substantive due process is sometimes a difficult concept, it basically means that there are certain rights we hold to be so fundamental in our society that laws attempting to restrict them may be deemed to be unconstitutional. These “ substantive rights” are considered to be so fundamental that they enjoy protection even if they are not explicitly mentioned in the Constitution. Even if procedural due process is followed in enacting and enforcing the law a substantive right “vetoes” the law.
Right to Privacy
The Constitution does not contain a right to privacy, but the courts have ruled that it exists. Our substantive due process right to privacy is the reason that the Supreme Court has prohibited the federal and state governments from enacting laws that completely restrict an adult’s choice to have an abortion, buy contraceptives or engage in consensual sex. The substantive due process right to marry has formed the basis for striking down laws prohibiting interracial marriage nationwide and gay marriage in some states. However, the Supreme Court has not yet ruled on whether gay marriage is a fundamental right protected by the Constitution.
There are many variations and applications of due process. At the core, however, is something to which we can all relate – due process embodies the notion that there are certain basic rights and fundamental freedoms we enjoy as individuals within our society, whether they are explicitly stated or not.
Due Process: Overview http://law2.umkc.edu/faculty/projects/ftrials/conlaw/proceduraldueprocess.html
The most obvious requirement of the Due Process Clause if that states afford certain procedures (“due process”) before depriving individuals of certain interests (“life, liberty, or property”). Although it is probably the case that the framers used the phrase “life, liberty, or property” to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property–if the interest doesn’t fall into one of those three boxes, no matter how important it is, it doesn’t qualify for constitutional protection. Thus, for example, the Court has ruled that the government may severely damage an individual’s reputation (by, for example, putting his name on a list of “known shoplifters”) without affording process.
The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.
The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver’s license may occur without many of the same protections.
Procedural Due Process http://papers.ssrn.com/sol3/papers.cfm?abstract_id=987758
The principle of ‘procedural fairness’ (also called ‘fundamental fairness’, ‘due process’ and ‘natural justice’) broadly requires administrative and judicial proceedings to be fair. Decision-makers in administrative and judicial systems attempt to achieve procedural fairness by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights, duties, powers and liabilities are administered. As will be seen in this chapter, the principle of procedural fairness is difficult to define precisely, because the demands of fairness depend on the circumstances. For example, it may be necessary to balance an individual’s interest in pursuing additional procedures with the value and cost of such procedures. Thus, in particular circumstances, procedural fairness might require a full hearing, whereas in other circumstances, basic notice and the right to speak might be sufficient. Considerations of procedural fairness might also conflict. For instance, parties’ rights to be heard and give evidence might weigh in favour of last minute introduction of evidence. On the other hand, the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against such evidence. Discretion is required to resolve such conflicts.
Substantive Due Process
On June 26, 2003, the Supreme Court delivered its opinion in Lawrence v. Texas, a case challenging the constitutionality of a state statute criminalizing homosexual (but not heterosexual) sodomy.
The Court held that the Texas statute (and, by implication, others like it) was unconstitutional, violating petitioners’ due process rights,5 and thus overturning its 1986 ruling in Bowers v. Hardwick. Justice Scalia, writing in dissent, warned that Bowers was a necessary barrier to the invalidation of numerous state laws regulating morals offenses and that Lawrence was, therefore, the first step onto a slippery slope that would lead courts to legalize a parade of sexual-conduct horribles. Justice Scalia offered no legal reasoning to bolster this emotional appeal, a continuation of his baldly homophobic dissent in Romer v. Evans.
Justice Harlan, dissenting in Poe v. Ullman, observed that one view of due process, “ably and insistently argued . . . , sought to limit the provision to a guarantee of procedural fairness.” But, he continued, due process “in the consistent view of this Court has ever been a broader concept . . . . Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. . . . Thus the guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.”‘
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